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Aug. 22 — The CMS has less than two months to develop a better plan to educate providers and auditors that Medicare covers home health, skilled nursing and outpatient therapy services, even if a patient’s condition isn’t expected to improve ( Jimmo v. Burwell, 2016 BL 267947, D. Vt., No. 5:11-cv-17, 8/17/16 ).
The deadline was set by a federal trial court that said the Centers for Medicare & Medicaid Services should improve its efforts to educate regulated entities concerning when so-called maintenance therapies—services that maintain or prevent decline of a patient's condition—are covered by Medicare.
The decision by the U.S. District Court for the District of Vermont is important, Judith Stein, executive director of the Center for Medicare Advocacy (CMA), told Bloomberg BNA Aug. 22, because it reaffirms that federal law requires Medicare managed care organizations to cover maintenance therapies. The CMA is a beneficiary advocacy organization.
In its Aug. 17 ruling, the court said that the CMS failed to follow through on certain corrective measures on covering maintenance services outlined in a January 2013 settlement. That settlement, the result of a class action lawsuit brought on behalf of lead plaintiff Glenda Jimmo, eliminated Medicare's “improvement standard” for coverage and called on the CMS to better educate providers and auditors that Medicare covers maintenance services. Before the Jimmo settlement, Medicare would typically only cover home health, skilled nursing and outpatient therapy services if there was an expectation of patient improvement, which could result in beneficiaries receiving sizable bills if they were prescribed physical therapy or other types of maintenance treatments (203 HCDR 203, 10/21/15).
In March, the CMA asked the court to determine if the CMS had properly implemented the required educational campaign. The Aug. 17 order rejected two of CMA's challenges to the agency's implementation of the settlement but found that the agency hasn't done enough to educate providers and private claims auditors about the settlement and should come up with a new educational plan within 45 days.
Asked for a response to the court's decision, an agency spokeswoman told Bloomberg BNA Aug. 22 that the CMS doesn't comment on pending or active litigation.
Providers may prescribe maintenance services for Medicare beneficiaries with any number of conditions, including multiple sclerosis, paralysis, Parkinson's disease, Alzheimer's disease, cerebral palsy, amyotrophic lateral sclerosis or the after-effects of a stroke, Stein said.
However, these patients and others are being denied maintenance coverage “all the time,” either by providers or auditors reviewing claims, Stein told Bloomberg BNA. These denials continued, despite an April 2013 fact sheet from the CMS that outlined the agency's standards for covering maintenance services (72 HCDR, 4/15/13).
Stein suggested several ways the CMS could fulfill the court order. The agency simply needs to post clear language on its website advising providers and auditors that maintenance services are eligible for Medicare reimbursement, Stein said. In addition, the CMS needs to ensure those answering questions at its billing and claims phone line (1-800-MEDICARE) know that maintenance services are covered, she told Bloomberg BNA.
There also needs to be a system beneficiaries can use to ask for help when prescribed maintenance therapies are denied, either at the provider or auditor level, Stein said.
Providers are denying coverage based on their experience with the Medicare agency, Stein said. Understandably, some providers are concerned they won't be reimbursed, at best, and at worst, they are worried they could be audited for covering the services, Stein told Bloomberg BNA.
The CMA has developed materials for the CMS to use for its required education campaign to improve on the Jimmo settlement, Stein said. “We said we’ll do the work” on education material, which the CMS could edit as they see fit, Stein said. To date, the CMS hasn't accepted the CMA's offer for assistance, according to Stein.
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